For today’s progressives there is no issue that galvanizes and unites quite like “corporate personhood.” Corporations enjoying constitutional protection have lately become their version “Big Brother.” They see the existence of the “corporate person” as the same kind of faceless, all powerful conspiracy of coercion that Orwell described in “1984.” Though it is a great novel, the problem with “1984” is that everyone who reads it thinks they are Winston, the protagonist who sees through the placid fascism. Orwell’s point is that we are not Winston. In fact, we are much more likely to be one of the multitude who unknowingly support the diminution of our own rights.
This is exactly the position modern progressives put themselves in regarding the rights of corporations. They are so anxious to deny corporations speech rights in political matters that they are willing to sacrifice the most basic freedoms enshrined at the founding of the Republic. What progressives don’t understand is that when that faceless corporate demon looks in the mirror, the faces it sees reflected are all of ours. Though examples abound of the importance of corporate rights, I’d like to focus on just one and ask a simple question: “Should theater companies have the right to free speech?”
Theater companies are a particularly apt starting point for this discussion because they were among the first corporations ever formed in the English speaking world. In the late 1500s, more than a decade before the founding of the East India Company, The Chamberlain’s Men were producing the work of an emerging playwright named William Shakespeare. Their corporate structure was extremely familiar. They had shareholders, employees, and a charter from the government. It makes perfect sense that theater companies would be among the first to take advantage of a corporate structure. Theater is, after all, a corporate art form.
Producing a show requires a multiplicity of talents and skill sets which vary from production to production. Allowing shareholders to share the risk and profit while offering their workers a more guaranteed rate of pay is extremely efficient and remains the basic model to this day. In addition, contrary to the notion that soulless corporations care about nothing but money, the corporate structure allowed shareholders, including Shakespeare, to create more and better work for wider audiences. By all accounts the Bard was as fond of a coin as anyone, but the notion that his company’s work was only about maximizing profits is absurd. Corporations have always been about more than money, they have been about innovation and creation on a level that one person alone can never reach.
There was another reason that theater creators of the Elizabethan age preferred a corporate model, a reason that is central to our current debate. Two hundred years before the drafting of the First Amendment, a royal charter, along with influential, well placed shareholders, offered a modicum of speech protection for artists. Not only was there safety in numbers, but the boundaries of the charter offered a shelter (albeit a leaky one) from arbitrary censorship by the government. From even their earliest iterations corporations were intended to allow private citizens to engage in economic and expressive activity without overburdening oversight from the government. By the early 19th Century the Supreme Court had affirmed that corporations are entitled to constitutional protections, most notably in “Woodward v Dartmouth.”
Corporate rights and free speech
In 1975 the Warren Court decided “Southeastern Productions LTD v. Conrad.” Southeastern Productions, a producer of touring shows, attempted to lease a municipally run theater facility in Chattanooga only to be denied that lease because their show was not deemed to be “in the best interest of the community.” There was nudity in the show, and sexual simulations, and rock music. If you haven’t guessed already, the name of that show is “Hair,” and thankfully Southeastern won the right to produce it.
The case is fascinating, dealing with the question of when “expressive conduct” can be deemed “criminal conduct.” But there was one question that never came up. I contacted Henry P. Monaghan, currently a Columbia law professor who argued the case for Southeastern Productions, and asked him if at any point, anybody argued that as a corporation Southeastern was not covered by the 1st Amendment. He replied, “I had the honor of representing the corporation in not only the Sixth Circuit and the Supreme Court but in other appellate litigation as well. To the best of my memory, no one suggested that Southeastern Productions could not assert a First Amendment right.”
Let’s understand the full implications of this. Today’s progressives believe that the government has more authority to censor theater productions than the municipal officials of Chattanooga believed they had in 1975. This is madness. If theater companies, almost all of which are corporate entities, have no constitutional rights what’s to stop any town from banning plays with homosexuality, or foul language, or even anti-government sentiments? Mr. Monaghan is rightly proud of his good work in the courtroom in 1975 because it made the country more free. For modern progressives to undermine that work by suggesting his client had, or should have, no free speech rights to begin with, is shameful.
Now here’s the thing. No progressive believes that the government should be allowed to shut down productions of “Hair.” Broadcasts of “Hillary the Movie”? Sure. But not productions of “Hair.” And most have no idea this is what they are actually advocating. When they think of corporations they think of Halliburton and Goldman Sachs, not the Public Theater or the Village Voice. But groups like “Move to Amend,” which lists hundreds of supporting progressive groups on its website, call for a constitutional amendment to ensure “that human beings, not corporations, are persons entitled to constitutional rights.” They make no distinction between huge multinationals and theater companies, none whatsoever. In fact under its own proposal, “Move to Amend”, which is a corporate entity with a Board of Directors would deny itself any constitutional protections. This is exactly the kind of self defeating group think that Orwell describes so well. The moment at which we forgo our right to work in concert as private citizens, without unchecked government intervention, because we have come to trust the State more than each other.
The vogue among progressives for stripping corporations of their rights is a result of two factors: intellectual laziness and marketing. The former is a hallmark of the new progressives, captured perfectly by the Occupy movement’s inability to break their sweeping generalizations into actionable policies. The latter was the great strength of the Occupy Movement. They made effective slogans.
As a piece of marketing saying “corporations are not people” is quite good. It leads to lots of jokes, and seems so obvious as to almost be self evident. But of course, as we have seen, it is not. The playwright, composer, director, actors, producers, stage managers and costume designers of “Hair” were all people. They did not check their right to free speech at the door when they decided to make a musical together.
There are serious concerns about corporate overreach in our society, and it is right to address them. It often seems that conservatives are less than full-throated in their defense of corporate rights for this very reason. Mitt Romney looking into the camera and cheerfully saying ‘corporations are people’ is not a Grade A sound bite. But this is not an issue that conservatives should hide from, regardless of the optics. It’s too important. To the basic question of whether corporations are entitled to constitutional protection there can be only one answer. They are. We can pick at the edges of the issue, as we often do in regard to individual rights. Justice Ginsburg in oral arguments in Citizens United asked, for example, if multi-national corporations can be deemed to be in a different class regarding constitutional protection. That is a useful line of questioning because it addresses the issue without throwing the baby out with the bath water.
Unfortunately these moderate conversations are not the ones being had, as progressives, even at the highest levels of government, press forward with their very real fight to strip corporations of their rights. Last year Rep. Jim McGovern, D-Mass., introduced his “People’s Right’s Amendment” with an endorsement from Minority Leader Nancy Pelosi. Here is Section II (emphasis is mine):
Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.
In 1975, the people of Tennessee through their elected officials deemed censoring “Hair” to be reasonable, the Supreme Court found it was not. In Mr. McGovern’s bizarre attempt to Occupy the Constitution he would turn back the clock and leave almost every theater company in America subject to the whims of local elected officials. As someone who has spent the last 15 years creating theater, that prospect scares the hell out of me. And I find it shocking that any right minded person, especially one claiming to be progressive, would ever embrace the government’s right to censor theater. It is the very important duty of the rest of us to make clear the folly of this position.
